Same-Sex Sexual Desire and the Re-Imagining of the South African Family

Abstract

Many individuals who form same-sex intimate relationships argue that the social and legal protection associated with heterosexual marriage should be extended to their relationships. This is understandable because marriage in South Africa remains the focal point for the protection and regulation of the interests of individuals who engage in intimate relationships of any kind. However, merely extending marriage rights to same-sex couples whose relationships mirror the idealised heterosexual norm will be problematic. Because of homophobia and prejudice many individuals in same-sex intimate relationships will not be able to freely ‘choose’ to get married. Others will form intimate relationships that will not be recognised because they will be insufficiently similar to the traditional heterosexual notion of marriage. Those who do not marry will therefore once again be marginalised and the law will once again fail to protect the weaker and more vulnerable partners in such relationships. The early case law of the Constitutional Court recognised that the right to substantive equality entails a right to equal concern and respect across difference and thus hinted that not only marriage-like intimate same-sex relationships, but also non-traditional forms of suchrelationsh ips should be constitutionally protected and respected. However, later judgments seem to suggest that intimate relationships that stray too far from the model of traditional heterosexual marriage, are less worthy of respect and protection. This narrow conception of what constitutes worthy intimate relationships is deeply problematic, not only for individuals in non traditional same-sex relationships but also for the millions of individuals in different-sex relationships who are not married, because it marginalises them and fails to extend legal protection to some of the most vulnerable members of society. The legal regulation of intimate relationships should therefore completely move away from the marriage model and should instead be based on a functional model which takes account of the unequal power relations in intimate relationships.